Duty of a Regulator Regulating in the Public

Transcript:Duty of a Regulator Regulating in the Public:
Duty of a Regulator Regulating in the Public Interest Zeynep Onen, Law Society of Upper Canada Freya Kristjanson, Cavalluzzo Shilton McIntyre Cornish LLP Outline Why do regulators have a duty to act in the public interest? What is the duty to act in the public interest? How does a regulator determine what is its specific focus concerning the public interest? Are there best practices regarding including public interest in regulatory processes? How does a regulator resolve conflicting duties or elements of the public interest? 1. The duty to act in the public interest The requirement to act in the public interest Delegated responsibility by the public to the regulator Delegated exercise of judgment and discretion Public trust in the license or other ‘brand’ Founded on a cultural consensus “The Public Interest” Limited guidance from case law SCC in R. v. Morales: “As currently defined by the courts, the term “public interest” is incapable of framing the legal debate in any meaningful manner or structuring discretion in any way” Decisions in the Public Interest “Public Interest”– must be interpreted in light of the legislative history of particular provision, and the legislative and social context in which phrase is used Decision-makers must base their decisions on the facts of the case, must be consistent with terms and purpose of statute, and not act in an arbitrary manner Common law guidance re discretionary decisions Public Interest Take into consideration the concerns of society generally, or at least those concerns relevant given the statutory scheme, and not merely the interests of one segment of society Equality and human rights values properly form part of the determination of what constitutes the public interest Doré – obligation to take Charter values into account in adjudicative decision-making 2. Identifying the public interest Statutes and Regulations Explicit/implicit General/specific Regulatory Tool Box Mission Statement Rules, Policies, Guidelines Strategic Plan/Business Plan/Priorities General: Charter, Human Rights Code, Privacy Adjudicative Decisions 2. Identifying the public interest Governing legislation – may contain explicit provisions Example: Law Society Act section 4.2 paragraph 3 “The Society has a duty to protect the public interest” Other Statutory Provisions Regulated Health Professions Act 36. (1) [Keep confidential all information that a person learns in the course of their duties except] …. (g) to confirm whether the College is investigating a member, if there is a compelling public interest in the disclosure of that information Health Professions Procedural